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A Legal Issues’ Study on the Dispute of Chinese Rare Earths’ Exports

Author: ChengSenLang
Tutor: HeXiaoYong
School: East China University of Political Science
Course: Legal
Keywords: Rare earths Export restrictions WTO Legal issues
CLC: D996.1
Type: Master's thesis
Year: 2013
Downloads: 5
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Abstract


This thesis attempts to analyze the legal issues on the Dispute of Chinese rare earths’ exports,combining the legal documents of WTO Dispute Settlement Body and previous cases, to expect for thedefense of China in the WTO to provide a more feasible path, at the same time，to provide a usefulreference for domestic adjustment on the export of rare earth and other rare mineral resources law. Thepaper analyzes the legal issues through the following steps:Firstly, through analyzing the reports which complaints about China’s rare earths export restrictions,submitted by United States, European Union, Japan to the WTO Dispute Settlement Body, to find outwhere China’s export restrictions inconsistent with the relevant WTO rules, summarized up, mainly: Theexport tariffs which are levied for the relevant rare earth export products; quantitative restrictions;restrictions on the rights of the export operators as well as national treatment problem; the managementon export restrictions is not uniform, unreasonable and opaque.Then, in the discussion on China’s rare earths restrictions whether are consistent with WTO rules ornot, mainly on General Agreement on Tariffs and Trade (GATT1994), Protocol on the Accession ofChina and Report of the Working Party on the Accession of China and other laws. At the same time, thethesis draws preliminary conclusions through analyzing the cases which were dealed in the WTO before.The reasons for imposuring tariff related to the exportation of rare earths are inadequate within theframework of the DSU of WTO, which mainly because of the Annex VI of Protocol on the Accession ofChina does not include the rare earths, which provides for the range of products that China can levy the export tariffs. Therefore, China should cancel the restrictive measures that inconsistent with the WTOrules and switch other ways.On the issue of Export quotas, the form of export quotas and licenses is not recognized by the WTOrules, in the view of GATT Article XI,,but the A item of second paragraph in the same article specifiesthe exceptions. In the previous cases before, the Panel and the Appellate Body thought it needed to provethe key words when applying the GATT Article11.2(a), but it is very for China to prove to get thesupport of the Panel. Especially in the case of raw materials in previous, the similar burden of proof fromChina did not got the support of the Panel, so it seems impossible through citing the GATT Article11.2(a)successfully on this issue. It is same to quote article20（b）and article20（g）of GATT. In addition, theproblem in quoting GATT Article21which Specifies the Security Excepions is that no precedent in theWTO before, and the related WTO rules also do not explain the key issues, so whether the result issupported by the Panel or not is also unpredictable if we quote the this term in the defense.In addition, there are specific terms of commitment in the Accession Protocol of China on theminimum capital requirement, whether discriminate between domestic and foreign enterprises or notrelated to the right of trade, as well as the issue of transparency of policy, what we need to do is to complywith the terms of these commitments.Finally, this thesis puts forward some advice through disserting the China’ existing domestic legalframework on the export of rare earths, and hopes the measures on the management of the export of rareearths, which not only in accordance with WTO rules, but also can protect the remaining rare earthsresources in China,

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